Education Advocacy Group Objects to Government's Demand for Its E-mails

03/26/2013

THE CHRONICLE OF HIGHER EDUCATION. MARCH 25, 2013. A prominent group that advocated for tougher oversight of for-profit colleges now finds itself at the center of a legal battle with investigators from the U.S. Department of Education. The dispute stems from the fiery political fight over the gainful-employment regulation and other rules for proprietary colleges.

The investigators have subpoenaed the e-mail records and other documents of the group, the Institute for College Access and Success, or Ticas, to help determine if a key former department official, Robert M. Shireman, broke federal ethics laws by improperly communicating with the organization about those regulations.

Before joining the Education Department in 2009, Mr. Shireman was president of Ticas, which he founded several years earlier.

Mr. Shireman was the Education Department official most closely associated with the tougher rules on for-profit colleges, a role that earned him the enmity of many in that industry. Indeed, the day he announced he was leaving the department, in 2010, stock prices of many of the publicly traded companies soared.

Ticas turned over a limited number of e-mails to investigators from the Education Department's Office of Inspector General over the summer. But it argues that complying with the demand for more than two years' worth of correspondence will "trample" its First Amendment rights and compromise the privacy of "students and whistle-blowers who entrust their stories and experiences" to it.

The organization, which is also known for its Project on Student Debt and other work involving protection of students against what it calls exploitative marketing and financial practices of colleges, said turning over the e-mails would also violate the First Amendment rights of the many policy makers, reporters, and members of other advocacy groups who frequently correspond with Ticas employees on matters of educational research and policy. It would "intrude on the very core of Ticas's advocacy work," the organization writes in legal filings.

The subpoena seeks e-mails and other communications between Ticas and Mr. Shireman from February 3, 2009, through February 11, 2011, as well as "any and all" of its documents related to the Education Department's development of new regulations on for-profit colleges—a matter that was a major focus of the organization's activities during the period.

In a document that Ticas filed Friday in U.S. District Court here, the organization also contends that the subpoena is "unprecedented in its reach" because inspector generals are authorized to investigate only government waste and fraud, and Ticas does not any receive government funds. It also argues that if the focus of the investigation concerns Mr. Shireman's activities, the government should obtain that information from him rather than probing widely through its records.

A Ticas official said the legal filing explained its position and declined to comment further. Neither Mr. Shireman nor the spokeswoman for the inspector general's office could be reached for comment over the weekend.

One expert who followed the political fight over the for-profit-college regulations said he found the subpoena puzzling. "It sounds like a very broad request for information," said Kevin Kinser, an associate professor at the University of Albany School of Education. "I'm just not sure what's the smoking gun they're looking for."

Questions From Congress

The inspector general's demand to enforcethe subpoena, filed in February, is apparently a continuation of an inquiry that seemed to have largely concluded in June. That inquiry responded to questions raised by members of Congress about whether the Education Department gave inside information about pending regulations to outside parties, including investors who could have benefited if tougher regulations made prices of for-profit college companies drop.

At least two Republican senators quickly criticized the investigation after the report came out in June as telling "half the story." Less than a week later, the inspector general's office issued the subpoena to Ticas for its e-mails.

After Ticas provided some e-mails voluntarily in August, the group said, it heard no more from the inspector general until it received the additional demand in February.

The gainful-employment rule would have barred the use of federal student aid for programs in which students debt-to-income ratios were too high or in which not enough students were repaying their loans. The for-profit-college industry spent millions in lobbying and advertising to oppose the rule and, once it was issued, sued to have it invalidated. A federal judge vacated key parts of the regulation last summer, finding that the department did not adequately justify the standards it had set.